Virginia officials prepare for rare tie-breaking lottery that could determine political control of legislature

A three-judge panel in Virginia certified the 94th District race in Newport News as tied after this ballot was counted for Republican Del. David E. Yancey. Lawyers for Democrat Shelly Simonds say the voter’s intent was unclear so it should have remained uncounted, which would have given her the win by one vote, but the recount court disagreed Wednesday. (AP/AP)

RICHMOND — State officials are gathering in the West Reading Room of the state's Patrick Henry building in Capitol Square to prepare for a rare tie breaking lottery Thursday that could tilt the balance of power in the state legislature.

The 11 a.m. drawing comes a day after a recount court rejected a request to toss out a disputed ballot that brought the contest to a tie.

In a race full of unexpected twists, the State Board of Elections is set to break the tie by randomly selecting the name of either Republican incumbent ­David E. Yancey or Democrat Shelly Simonds from a stoneware bowl fashioned by a Virginia artist.

The spectacle, expected to be watched via live stream around the country,could break the GOP's 18-year hold on the House of Delegates.

But even if Simonds wins the drawing — splitting the 100-member chamber right down the middle — odds are the GOP will retain control on Day One of the 2018 General Assembly session, when crucial votes for speaker and rules take place.

That's because the candidate who loses the drawing can request another recount, a process not likely to be completed before the legislature convenes on Jan. 10. And based on history, neither candidate would probably be seated if there is a pending recount, giving the GOP a 50-to-49 majority when delegates pick a speaker for the next two years.

Once chosen, the speaker, who makes all committee appointments, may be ousted only by a two-thirds vote. So even after picking up at least 15 seats in a wave election widely seen as a rebuke to President Trump, House Democrats will probably still have to contend with Republican Del. M. Kirkland Cox (Colonial Heights) as House speaker.

After the recount court ruled against her Wednesday, Simonds made a pitch to Yancey that seemed intended to avert that outcome: She offered to accept the results of the drawing as final, but only if Yancey pledged the same.

"This proposal . . . will ensure that our friends and neighbors have a voice in the House of Delegates on Jan. 10," she wrote to Yancey. It would also ensure that Simonds would be seated — and the House evenly split — if she wins the drawing.

A group of recounters get some help filling out the paperwork as they count ballots for the 94th District on Dec. 19. (Joe Fudge/AP)

In addition to picking a speaker on Jan. 10, the House will pass rules governing committees, which are key to determining whether bills make it to the floor. The rules, for instance, dictate whether committee membership reflects the partisan makeup of the chamber. If the GOP is in the majority on the first day, it could permit committees to be stacked with Republicans rather than reflect the chamber's near parity.

One bright spot for Democrats: The rules, while adopted for a two-year period, can be amended later by a simple majority vote. But the amendments would have to make it out of the Rules Committee, which is traditionally chaired by the speaker.

House Democrats had recently pushed for Simonds to be seated immediately if she won the drawing, even if Yancey sought a recount. But Republicans and some independent observers say there is no precedent for doing so.

In 2009, Alexandria lawyer Charniele Herring (D) narrowly won a House seat in a special election but was not sworn in until a recount confirmed her victory nearly two weeks later. Control of the GOP-dominated House was never in question. But by then, the Democrat had missed about a quarter of the legislative session.

In 1998, Democrats reelected Speaker Thomas W. Moss Jr. on the opening day of the session — without three newly elected GOP delegates whose victories had not been certified. The three gave the GOP 49 seats plus one Republican-friendly independent, cracking the Democrats' 100-year hold on the chamber.

"Unfortunately, there's not a good precedent for the Democrats," said Mark J. Rozell, dean of the Schar School of Policy and Government at George Mason University. "You do that, you lose the right to complain."

Rozell said there is a simple reason legislators cannot be seated before their victories are confirmed: "You don't want the loser to be voting on legislation."

But he also said the situation poses political risk for Republicans if Democrats can bill it as a GOP power grab.

Voters "will only know the Democrats won a huge wave election and the Republicans are desperately trying to save their slim majority," he said. "Whether fair or not — I would say not — that would be the overriding sentiment of most voters."

Lawyers for Simonds persuaded the Elections Board to call off a Dec. 27 drawing as they asked the recount court to reconsider its decision. The board announced last week that it would proceed with the drawing Thursday if the court had not intervened by then.

Bob Holsworth, a longtime observer of Virginia politics, said "time was of the essence for the Democrats."

"Why they went through this exercise of asking the same judges who had accepted the ballot to change their minds three days later is almost incomprehensible," he said.

On a call with reporters Wednesday, Simonds defended her decision to ask the recount court to reconsider. "What happened after the recount seemed so egregious that we had to voice our concern in this motion," she said.

On Election Day, Yancey appeared to beat Simonds by 10 votes in the 94th legislative district. A Dec. 19 recount left Simonds ahead by a single vote, prompting Yancey to concede.

The next day, the recount court decided that a ballot declared ineligible during the recount should count for Yancey, tying the race at 11,608 votes apiece. The unidentified voter filled in bubbles on the paper ballot for Simonds and Yancey but also made a slanted mark across the Simonds bubble. The court ruled the extra mark was an effort to strike out the vote for Simonds, declaring the race a tie.

Republicans agreed. Democrats said that the voter's intent was unclear and that the ballot must be tossed as an "overvote," meaning two competing candidates were chosen. The voter had also made extra marks by another name — Republican Ed Gillespie, who ran unsuccessfully for governor against Lt. Gov. Ralph Northam (D) — drawing an "X" on the bubble as well as filling it in. Perhaps, Democrats argued, the extra mark by Simonds's name was half of an "X," abandoned as the voter reverted to filling in bubbles.

Since that Dec. 20 ruling, Simonds has been making her case to big media outlets — multiple appearances on CNN and MSNBC among them — raising the profile of the relatively small legislative race.

And she asked the recount judges to reconsider their decision on the ballot. In an 11-page decision Wednesday, they turned to a dictionary to justify how they divined the meaning of the slanted mark by Simonds's name.

"Webster's Third International Dictionary defines 'scratch' as follows: 'to cancel by drawing a line through,' " the judges wrote. "The filled-in oval for the Petitioner had a line drawn through it. Therefore, the Court found that it corresponded to the definition of a scratch."

The decision did not address the scratch marks by Gillespie's name.

In another disputed race, a federal judge will hold a hearing on Friday regarding a request for a new election in the 28th House District near Fredericksburg. Republican Bob Thomas defeated Democrat Joshua Cole by 73 votes for the seat being vacated by retiring speaker William J. Howell (R-Stafford). Democrats are seeking a new election because a registrar's apparent mistake caused 147 voters to cast ballots in the wrong race.